on that of postmaster or United States Marshal. **** If the selling of goods by sample, and the employment of drummers for that purpose, injuriously affect the local interest of the States, Congress, if applied to, will undoubtedly make such reasonable regulations as the case may demand. And Congress alone can do it: for it is obvious that such regulations should be based on a uniform system, applicable to the whole country, and not left to the varied, discordant, or retaliatory enactments of forty different States: BRADLEY, J., Robbins v. Taxing Districi (1887), 120 U. S. 489, 495-8.

The latest of the decisions giving freedom to drummers, is Stoutenburg v. Hennick (1889), 129 U. S. 141, which began by the arrest of William J. Hennick in Washington City, D. C., for acting as commercial agent of a Baltimore wholesale house, without having paid the license fee required by the District Act of August 23, 1871, Section 21:

Third, Commercial agents shall pay two hundred and fifty dollars. Every person residing in the District of Columbia, whose business it is, as agents for nonresident manufacturers or wholesale dealers, to offer for sale merchandise, shall be regarded as a commercial agent: (Acts, Sess. I, page 93).

Hennick was convicted, but only to be released upon Habeas Corpus by the District Supreme Court, May 9, 1887, because the Act was an unauthorized regulation of interstate commerce and obnoxious to the principle of the Robbins Case (supra, page 758). The discussion of the principles by which the decision was to be reached, extended also to the power of Congress over the District, but no final conclusion was reached as the case required nothing more than the determination that the local government erected by Congress, was municipal and not competent to exercise any larger powers: Re Hennick (1887), 5 Mackey 489. The case was then removed to the Supreme Court of the United States where the release of Hennick was affirmed, January 14, 1889, on an opinion by Chief Justice FULLER, on the ground taken in the Robbins Case, that such business required uniform regulation, and not Congressional action, directly or indirectly for the District alone. Justice MILLER dissented because the District of Columbia was not a State, a ground which is much too narrow, as was pointed out in the Court below:

This District is set aside and dedicated to the uses of the Nation, and if there be anywhere on the face of the carth, a locality where no discrimination should be made as against the rights of any of the States, or any citizens of the United States, it should be upon this soil where all are equal, on which each citizen has an equal right and in which each State has an equal right, as regards all the other States, and as regards the United States itself. We cannot suppose that when the Congress was vested with power to legislate over this District, it was clothed with any power to act as such Legislature, in hostility to the rights of the States, or to do anything regarding the interests of the citizens of one State, which any State of the Union could not do with regard to the citizens of any other State: MERRICK, J., Re Hennick, 5 Mackey 489.

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These sentiments are very similar to the principle expressed by Justice MILLER, in Crandall v. Nevada (supra, page 464), when denying the validity of a tax upon each passenger leaving the State, as against the authority of McCulloch v. Maryland (1819) 4 Wheat. (17 U. S.) 316.

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The people of the United States constitute one nation. They have a government in which all of them are deeply interested. This government has necessarily a capital established by law, where its principal operations are conducted. * That government has a right to call to this point, any or all of its citizens, to aid in its service, as members of the Congress, of the Courts, of the Executive Departments, and to fill all its other offices; and this right cannot be made to depend upon the pleasure of a State over whose territory they must pass to reach the point where these services must be rendered. * But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it: MILLER, J., Crandall v. Nevada (1867), 6 Wall. (73 U. S.) 35, 43-4.

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The final result of these progressive decisions is an affirmance of Robbins v. Taxing District, Leloup v. Mobile, Asher v. Texas, Stoutenburg v. Hennick, and Lyng v. Michigan (herein, pages 758, 759, 760, 763, 739, supra), in the case of McCall v. California (1890), 136 U. S. 104. This latest case began by the conviction of J. G. McCall, in the police court of the City and County of San Francisco, June 3, 1888, for soliciting passenger traffic in that City, for the Erie Railway, extending between Chicago and New York City, without having paid the quarterly fee required of “every railroad agency," by a municipal regulation (Order No. 1589 of the Board of Supervisors of the City and County of

San Francisco). Upon appeal to the Superior Court of that City, the judgment was affirmed, but upon removal to the Supreme Court of the United States, it was reversed, as the order imposed a tax on interstate commerce.

This effect of the order was denied by the California Court, on the ground that the business of soliciting passengers in California for a railroad wholly outside of that State, did not result in the introduction of anything into the State, and hence could not be an instrument of interstate commerce.

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The argument is based upon the assumption that the provision in the Constitution of the United States relating to commerce among the States, applies as a limitation of power, only to those States, through which such commerce would pass, and that any other State can impose any tax it may deem proper upon such commerce. To state such a proposition is to refute it; for if the clause in question prohibits a State from taxing interstate commerce as it passes through its own territory, a fortiori the prohibition will extend to such commerce when it does not pass through its territory. * * It is further said that the soliciting of passengers, in California, for a railroad running from Chicago to New York, if connected with interstate commerce at all, is so very remotely connected with it that the hindrance to the business of the plaintiff in error caused by the tax, could not directly affect the commerce of the road, because his business was not essential. The reply to this proposition is that the essentiality of the business of the plaintiff in error to the commerce of the road he represented, is not the test as to whether that business was a part of interstate commerce. *The test is-Was this business a part of the commerce of the road? Did it assist, or was it carried on with the purpose to assist in increasing the amount of passenger traffic on the road? If it did, the power to tax it involves the lessening of the commerce of the road, to an extent commensurate with the amount of business done by the agent: LAMAR, J., McCall v. Cal. (1890), 136 U. S. 104, 110–11.

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It seems advisable to add once more, that the subject of State and Congressional regulation of the instruments of commerce cannot be entered into, for want of space: the references already made to such cases as have reached the Supreme Court of the United States, are sufficient to show that the same general principles are there applied.

JOHN B. UHLE.

(To be concluded in the December number.)

766

Supreme Court of Pennsylvania.

PENNSYLVANIA RAILROAD CO. v. WEILLER.

A stipulation in a bill of lading that an agreed valuation shall cover loss or damage from any cause whatever, does not relieve the carrier from liability for the actual value of goods lost, when the loss has been caused by his own negligence.

But in such case the owner of the goods which have been lost through the negligence of the carrier, may recover from him their full actual value, notwithstanding the fact that a less value was agreed upon and that in consideration of such agreement a lower rate of freight was charged. MITCHELL, J., dissents.

Error to the Court of Common Pleas No. 1, of Philadelphia County.

Trespass, by Hermann Weiller against the Pennsylvania Railroad Company to recover damages for the loss of four barrels of whiskey, caused by the alleged negligence of defendant. Plea, not guilty.

Upon the trial, before BREGY, J., it appeared that on June 15, 1887, the defendant received from Moore & Sinnott, at Belle Vernon, ten barrels of whiskey, to be carried over the line of its road to Philadelphia, and delivered to Hermann Weiller, the plaintiff, the owner and consignee thereof. While the shipment was in the possession of the Pennsylvania Railroad Company, four barrels of the whiskey were lost or destroyed by a wreck occurring on defendant's railway. The whiskey was shipped under a bill of lading, of which the material clauses were as follows:

Received, June 15, 1887, from Moore & Sinnott, the following described property, in apparent good order (contents, and condition of contents, of packages unknown), to be transported to and delivered at the regular freight station of the company at Philadelphia, Pa., subject to all the conditions following and upon the back of this receipt, and to be delivered in like good order, subject to the said conditions, upon payment of freight and advanced charges, and upon payment also of all charges accruing under the said conditions.

It is mutually agreed, and it is the spirit of this contract, that the Pennsylvania Railroad Company, hereinafter designated the carrier, shall transport the above-named merchandise with all due care and dispatch to

its destination, or to the terminus of its line in the direction of destination, and tender it to the consignee, or to the connecting carrier, as the case may be, in the same apparent good order and condition in which it was receipted for at point of shipment, and in case of loss from any cause within the carrier's reasonable control, shall pay for the same at the net invoice price, freight charges added if paid (unless a lower value of the articles has been agreed upon with the shippers, and such value noted hereon, or same is determined by the classification upon which the rates are based), and in case of damage through the negligence of the carrier's servants, shall pay a just assessment of same, the carrier to have the full benefit of any insurance that may have been effected upon or on account of said goods.

The carrier shall not be liable for loss or damage by causes beyond its reasonable control, by fire from any cause and wheresoever occurring; by riots, strikes, or stoppages of labor, or by any of the causes incident to transportation, such as chafing, heating, freezing, leakage, rust or any other reason not directly traceable to the negligence of the carrier's servants.

And, finally, in accepting this shipping receipt, the shipper, owner and consignee of the goods, and the holder of the shipping receipt, agree to be bound by all its stipulations, exceptions, and conditions, whether written or printed, as fully as if they were all signed by such a shipper, owner, consignee or holder.

When a valuation as agreed upon shall be named upon this shipping receipt, it is distinctly understood that such valuation shall cover loss or damage from any cause whatever.

By a provision of the bill of lading the whiskey was valued at twenty dollars per barrel. The evidence showed that this provision was inserted by the shippers, and there was no question in the case as to their knowledge of the contents and terms of the bill of lading; that there were two rates of freight fixed by the company for the carriage of freight of this character, to wit, thirty-three cents per hundred pounds, and twenty-eight cents per hundred pounds, and that the lower rate was given to shippers at their own request, upon their entering into a contract, which was written into the bill of lading, that in case of any loss or damage no greater sum should be recovered than the valuation fixed therein, being in this instance a lower valuation than the actual value of the whiskey. The defendant offered to pay the plaintiff for the barrels of whiskey destroyed at the valuation fixed in the bill of lading, to wit, twenty dollars per barrel. The plaintiff refused this offer.